תמונות בעמוד
PDF
ePub

18

鍰辟鍰疑閱疑閱疑

閱疑閱赦實赦實赦實赦 實赦實其

其其其罰罰罪罰罪罰 舞罰舞天宮倍惟

墨子大百辟 差辟倍 倍辟鍰

"When in a doubtful case the infliction of branding is forborne, the fine laid on instead must be 600 ounces of copper; but you must first have satisfied yourselves as to the crime. When the case has reference to the cutting off the nose, the fine must be double this, the same care having been taken to determine the crime. Where the penalty would be cutting off the feet, the fine must be 3,000 ounces;-with the same careful determination of the crime. Where the penalty would be castration, the fine must be 3,000 ounces;-with the same careful determination of the crime. Where the punishment would be death, the fine must be 6,000 ounces; – with the same careful determination of the crime. Of crimes that

P. 18. The law of the redemption of punish- | would not be a greater penalty than cutting off the nose.

ments.

其罰百鍰 the fine is a

hundred hwan. The hwan was equal to six

leang, i.e., six Chinese ounces. Some uncertainty attaches, however, to this estimate. Keang

Shing inclines to the view that 100 hwan were

倍差一倍而又差 But

the amount is not at all certain. Ts'ae says

it is 500 hwan,-double the previous fine, and a
degree
Ma Yung makes it 533

more.

equal only to 3 kin, or Chinese pounds. The | hwan and one third of a hwan (倍者倍

coins or metal in which this and all the other

fines were paid is called by Gan-kwǒ 黃鐵,

二百為四百差又加四百

fyellow iron., Ying-tã observes that ancient- 之三分一凡五百三十三

ly, gold, silver, copper, and iron, all went by

the general name of kin (金). Gan-kw 鍰,三分鍰一也). Kêang Shing thinks

this estimate excessive, and reduces it to 333

calls the metal spoken of here 黃鐵, and huwun and a third (倍差于你

that intended in 'The Can. of Shun,' p. 11,

黃金; but in either case he means copper'

鍰為 .百之外又差出二

(銅). It was that metal which was required 百之三分二凡三百三十

anciently in all redemption payments. Med

[ocr errors]

鍰三分鍰之一). The truth

hurst makes the metal to be silver,' for which is, we do not know certainly the proportion de

he has no authority. Gaubil says he knows

nothing about whether the fine was paid in

copper or in some other metal. There has never

been but one opinion on the subject, so far as I am aware, among the Chinese themselves,

óunces.

其法惟倍倍=‘double,’−1,200 =刖足,‘cutting off the feet' This was the third of the five punishments, and not HJ, or 'cutting off the ear,' as we might perhaps infer from p. 3, if there be no error of the text there. Cutting off the ear

noted by 差 I apprehend that 倍蓰 in

Men., VI., Pt., I., xi., 7, is another form of
the
here, and therefore agree with

[blocks in formation]
[blocks in formation]

19

下○

百五

may be redeemed by the fine in lieu of branding there are 1,000, and the same number of those that would otherwise incur cutting off the nose. The fine in lieu of cutting off the feet extends to 500 cases; that in lieu of castration to 300; and that in lieu of death to 200. Altogether, set against the five punishments there are 3,000 criınes. In the case of others not exactly defined, you must class them with the next higher or next lower offences, not admitting assumptive and disorderly pleadings, and not using obsolete laws. Examine; act lawfully:judging carefully, and proving yourselves equal to every difficulty.

"Where the crime should incur one of the higher punishments, but there are mitigating circumstances, apply to it the next

there are 3,000 crimes, Acc, to the Chow Le,以下刑比之. In such cases special

Bk. XXXVI., on the duties of the caution was necessary, and therefore it is added

the crimes to be visited with the five punish- 一無偺亂辭勿用不行. Tsue

ments are stated to be 2,500, 500 being assigned

to each penalty. By king Muh's enactments the total number of crimes was increased, but at the same time a larger number were classed as liable to the lighter penalties and fines, and a

sinaller number ae liable to the heavior pumish

ments.

Thus the Chow Le makes 500 offences

punishable with death; king Muh, only 200;

against the 500 of the former, punishable with

branding or cutting off the feet, he assigned in each

case 1,000. 上下比罪,‘above and

below compare the offence.' This is understood to be spoken with reference to offences which did not come exactly under any statutory definitions. Their proper place must be sought by comparison with other recognised offences of a heavier and a lighter character. The 'Daily

Explanation' says: 法之所定有限 而人之所犯無窮其有犯 無正律者則以上下刑而 比附其罪如罪疑于重則 以上刑之罪疑于輕則

says he does not understand these clauses, but

they will admit the interpretation which appears

in the translation. 不行=已革之

法 annulled laws' (舊有是法而 今不行者》 惟察

Even Këang Shing reads 其審克之

as

the concluding clause of the paragraph, thereby

admitting the force of the remark which I made

on his mode of pointing par. 17.

P. 19. General principles affecting the determination of crimes and the adjudication of the punishment due to them 上刑至有

權-上刑 denotes a crime, which, on a

first and superficial view, would seem to require to be dealt with by one of the higher penalties;'

but there are circumstances discovered on ex. amination which 適輕, ‘tend to a lighter adjudicated to the penalty for offences of the consideration of it' It must then 下服, (be

next lower class' The Daily Explanation/

20

中折佞人○齊世權輕刑 察獄折極罰有重刑重適 辭罔獄于懲倫惟罰譒重 于非惟病非有齊世罰上 差在良非死要非輕有服

lower. Where it should incur one of the lower punishments, but there are aggravating circumstances, apply to it the next higher. The light and heavy fines are to be apportioned in the same way by the balance of circumstances. Punishments and fines should also be light in one age and heavy in another. To secure uniformity in this seeming irregularity, there are certain relations of things to be considered, and the essential principle to be observed.

"The chastisement of fines is short of death, yet it will produce extreme distress. They are not therefore persons of artful tongue who should determine criminal cases, but really good persons, whose awards will hit the right mean. Examine carefully where there are any discrepancies in the statements; the view which you were defines 服by受刑, (to receive punishment | disorder (治則刑重亂則刑輕)

[graphic]

denotes properly 'the weight of a

This will always be; but an approximation to uniformity may be obtained by what is said in

steelyard,' moved backwards and forwards along conclusion,一惟齊非齊有倫有

the arm as the thing weighed is light or heavy.

This original meaning of the char. appears. Wang Gan-shih, correctly and ingenious

[ocr errors]

clearly in 輕重諸罰有權 Kang ly, defines 倫by先後之序, the order

Shing's exposition of the meaning is here terse

of precedence and sequence,' and 要 by衆

and perspicuous:一本在上刑之科 體所會, that in which all the different 而情適輕則減一等治之 等治之 members meet.

本在下刑之科而情適重

P. 20. General observations on the character of

which they should specially direct their attentions.

則加一等治之宜輕宜重 the men who should act as judges, and on points to 有權焉,不可執一也刑罰 世輕世重−the different circumstances

of different times form the weights to be em

罰懲至在中-耳, as opposed

to佞: evidently denotes what we mean by ‘good 罔非在中 may be

ployed in determining the penalties to be ad- and honest.’

judicated to crimes committed in them. The understood either of the awards of such men

adjudicating minds, however, will be found to

come to different conclusions. Thus Ying-ta (輕重出入,不失乎中),

or of

quotes from the Chow Le, Bk. XXXV., near their character in judging (公正不偏

the beginning, that 'in a new country-i.e., im

mediately after a revolution-the punishments). Keang Shing takes the latter should be light; in a well-ordered country, mo

derate; and in a rebellious country, heavy, view, but the former is to be preferred. 察 辭于差examine pleas in difference;" e, where a prisoner or a witness is making

(刑新國用輕典平國中 典:亂國用重典) Kêang Shing,

again, quotes from Seun King, 正論篇,

[ocr errors]

that when a State is well governed, the punishments should be severe, and light when it is in

false statements, he will probably not be

long or perfectly consistent with himself. Let the judge mark any discrepancy, and follow up from it his quest of the truth. 非從

備孚而克其中胥明哀非 正 占啟敬從

咸刑折惟

兩土而成審 成審刑庶書獄從

determined not to follow you may see occasion to follow; with com

passion and reverence settle the cases; examine clearly the penal code and deliberate with all your assessors, that your decisions may be all likely to hit the proper mean and be correct :—whether it be the infliction of a punishment or a fine, examining carefully, and mastering every difficulty. When the case is thus concluded, all parties will acknowledge the justice of the sentence; and when it is reported, the sovereign will do the same. In sending up reports of cases, they must be full and complete. If a man have been tried on two counts, his two punishments must be recorded."

惟從非從 may be considered as gov

erned by A judge should ever be open to the evidence, and not allow the impressions which he receives to be affected by foregone conclusions in his own mind. Gan-kwo connected this clause closely with the preceding, as

does Kêang Shing:Follow up the inquiry

from the point where discrepancy of statement

has arrested your attention, and find out the
statement, but follow the truth' (旣得其
情非從其辭惟從其情)
This view has nothing to recommend it. 明
啟刑書胥占‘clearly open(ie,
lay open, unfold. The literal signification is
not that intended)-the book (or books) of pun-
ishment, and mutually deliberate.’ 占 =
'to deliberate,'-as if they were considering

truth. Having got the truth, do not follow the

[ocr errors]

the oracles of divination,' 獄成而 | -若是則獄成於下而 民信之,‘in this way the case will be

concluded below, and the people will believe

have confidence in the judgment.' 輸 奏 ‘to report, send up a statement of the case') 而字獄輸於上而君信 Z, 'when the case is reported, the sovereign will believe-have confidence in-the judgment.' Këang Shing, after Gan-kwǔ, takes

the second 而 as=汝, and interprets the whole:獄成而信矣乃輸汝 信于上,'when the case is thus concluded,

and you have got to the truth of it, then present
a memorial of your assured conclusion to the
sovereign.' This is very harsh and unnatural.
其刑上備有幷兩刑-the

(Daily Explanation’expounds this:獄辭
又不可遺漏當其上奏
備載其情辭或一人而犯
兩刑雖從重問擬亦必將
輕罪開列取自上裁方見
精詳謹慎之意

[In this chapter there are many good advices concerning the care and the methods with which justice should be administered. The principal thing, however, on which the king dwells is the redemption of punishments, and I fear he must be left with the obloquy generally attaching with Chinese writers to his memory, as having the first to introduce, at least on an ex

a

bensive scale, the system of accepting money as compensation for the most heinous offences. only where there was some doubt as to the jus

He says, indeed, that the fine was to be exacted

tice of inflicting the punishment itself. China certainly, within the range of its history, was never the country where a government would, openly and without some glossing of the fact, take money as a satisfaction for transgressions of the law; but it is easy to see how grossly the I cannot conceive the scheme here set forth to have emanated save from a weak and needy monarch. The prefatory note says that this Book developes and explains the laws of the

regulations of king Muh were sure to be abused.

Hea dynasty for the redemption of punishment ; but there is no intimation in the Book itself of any other authority. The student weets with

such a thing, nor is the statement supported by

獄亂于配今刑多伯呼刑。
之罔單在天有懼族敬

雨不辭下相德朕姓
辭中民明民惟敬朕

無聽之清作刑于言

之哉官

Ye

21. VI. The king said, " Oh! let there be a feeling of reverence. judges and chiefs, and all ye who my relatives are of the royal House, know all that I speak in much fear. I think with reverence of the subject of punishment, for the end of it is to promote virtue. Now Heaven, wishing to help the people, has made us its representatives here below. Be intelligent and pure in hearing one side of a case. The right ordering of the people depends on the impartial hearing of the pleas on both sides;-do not seek for private

the assertion continually; but there is really no evidence for it whatever;–it rests merely on the dictum of that note, for which moreover it would not be difficult to find another explanation.

The Book grounds itself in the history of Shun, and especially on his establishment of penal laws and the administration of them. Now, the redemption of punishments is

ment and blows with the bamboo is between 480 and 4,800 ounces. Great official corruption and depravation of the general morality must connect with such a code.]

Ch. VI. P.21. THE KING AGAIN ADDRESSES
THE PRINCES AND JUDGES GENERALLY, AND EX-
HORTS THEM TO REVERENCE, IMPARTIALITY, AND
PURITY, IN THE ADMINISTRATION OF JUSTICE.
we may

tioned by him. The notice is very brief. Weare官伯族姓by官and
and伯

told that he gave delineations of the statutory
punishments, and enacted banishment as a
mitigation of the five great inflictions; with the
whip to be employed for short-coming officers,
and the stick for offending teachers, and money
to be received for redeemable offences.' (See
'The Can. of Shun,'p. 11.) Whatever the of-

fences were that might be redeemed with Shun,

those deserving or seeming to deserve any of

the five punishments were not among them.

Nor does the Chow Le contain anything to

understand the 典獄 and司政of p. 12. Ying-tă endeavours to show that

are

to be taken, the former as meaning the princes latter as those who were of other surnames. who were cadets of the royal House, and the

He says:-襄十二年左傳哭諸

侯之例云異姓臨于外同

indicate that prior to Muh the redemption of 族于禰廟是相對則族為同

punishments was recognised by the emperors 姓,姓為異姓. But the whole of the

of the dynasty. To him belongs the bad distinc

tion of this legislation.

passage will not support his inference. It is

Once introduced into China, however, the 凡諸侯之喪異姓臨於外 penal code of every subsequent dynasty. Two 同姓於宗廟同宗於祖廟

redemption of punishments has entered into the

tables will be found in the preliminary matter. There is thus no opposition to Sir George Stanton's translation of the

Penal Code of the present Mwan-chow rulers of | in the passage between 姓and族 By族 we are to understand the 伯父伯

the empire, pp. 72, 73, giving the scale, first, of the pecuniary redemption of necessary redeem

able offences, and second, of the redemption 兄仲叔季弟幼子童孫 of

of others not necessarily redeemable, but made

so on petition. According to the latter, the p. 13. The passage in the itself bears punishment of death may be compounded for

on a graduated scale, according to the rank of out this view. 有德惟刑−the Daily

the offender, rising from 1,200 ounces of silver

for a private individual to 12,000 for an officer Explanation' paraphrases this by-刑為不 above the 4th rank. The scale for redemption 得已而用先王所以教民 7,200 ounces. And that for temporary banish-祗德者是有德惟刑而不當

from perpetual banishment is between 720 and

[blocks in formation]
« הקודםהמשך »